Waving Offensive Sign – Not Unlawful Adverse Action

In a 3-2 majority, the High Court on 16 October determined that a long serving employee of BHP Coal who was a member of the CFMEU was not dismissed for participating in a lawful protest organised by the Union. The Fair Work Act 2009 prohibits an employer from taking “adverse action” such as dismissal against an employee because the employee is exercising a workplace right such as participating in a lawful industrial activity or is advancing the views of a union.

Although the employee, Henk Dovendans, had participated in the lawful protest, the majority was satisfied that the real reason for his dismissal was that in waving a sign (that was supplied to him by the CFMEU) at other employees and passing motorists, Mr Dovendans was in breach of BHP Coal’s workplace conduct policy that required that he treat his colleagues with courtesy and respect.

The majority accepted BHP Coal’s arguments that the sign, which contained the words “No principles SCABS No guts” was “inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of BHP Coal’s workplace conduct policy.” The policy was well known to Mr Dovendans and he displayed arrogance when others objected to his conduct. His conduct was antagonistic to the culture the general manager was trying to develop at the mine. Mr Dovendans was not dismissed because he was advancing the views of the CFMEU but because of his conduct and what it represented to the General Manager about Mr Dovendans as an employee.

Conclusion
Unlawful adverse action claims are becoming more frequent. Under the Fair Work Act’s general protection provisions, a person (such as an employer, or principal) must prove that another person (such as an employee, prospective employee or contractor) was not dismissed (or otherwise treated adversely) because the employee exercised or sought to exercise a workplace right. The above case was determined on its own facts and after the Federal Court at first instance had found in favour of the union. Employers and contractors should seek advice about their own particular circumstances. Contact Gordon Jervis at CTI Lawyers if further information is required.